CEU Electronic Theses and Dissertations, 2022
| Author | Madina Dumanova |
|---|---|
| Title | Protecting foreign investment in post-Achmea Europe: what are the adjudicatory options? |
| Summary | The consistently rising number of investor-state arbitration proceedings has triggered an extensive backlash and increased questioning of the investment law regime within the EU. This turned into a real conflict when CJEU adopted Achmea ruling that declared the intra-EU BITs to be incompatible with the EU law in 2018. While intra-EU investors were barely getting used to the post-Achmea landscape without protections afforded under intra-EU BITs, the EU’s fight against the existence of arbitration tribunals has continued ever since with its rulings in Moldova v. Komstroy and Poland v. PL Holdings declaring ECT arbitration and ad hoc arbitration agreement to be incompatible with the EU law respectively. The consequences of these rulings are momentous to intra-EU ISDS which arbitration tribunals do not yet want to recognize. While it is understandable that two systems are asserting control over the investment protection regime within the EU, the conflict between them is depriving EU-based investors of the predictability they need the most to protect their investments. In light of the above, the thesis aims to analyze the current anti-arbitration attitude within the EU in light of Achmea and post-Achmea developments and their significant and irreparable effect on intra-EU investment arbitration. Moreover, considering the heightened need of investors for other means of dispute settlement in light of these developments, the thesis also intends to provide a comparative analysis of tradeoffs of potential adjudicatory mechanisms for settlement of investment disputes (domestic courts, ECHR, WTO, and ICJ). Taking into account the current anti-arbitration stance in Europe, the thesis makes three recommendations: First, EU investors should abstain from resorting to arbitration due to the high risk of the challenge of an award. Second, bringing a dispute first before a domestic mechanism and then before the ECHR offers a favorable institutional choice to investors. Third, the choice of investors should take into account the different contexts. |
| Supervisor | Tommaso Soave |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2022/dumanova_madina.pdf |
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